Stern Electronics Pty Ltd v Vascular Enhancement Technology Pty Ltd
[2010] QDC 42
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- Stern Electronics Pty Ltd v Vascular Enhancement Technology Pty Ltd[2010] QDC 42
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Stern Electronics Pty Ltd v Vascular Enhancement Technology Pty Ltd[2010] QDC 42
Stern Electronics Pty Ltd v Vascular Enhancement Technology Pty Ltd[2010] QDC 42
[2010] QDC 42
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 3189 of 2008
STERN ELECTRONICS PTY LTD | Plaintiff |
and | |
VASCULAR ENHANCEMENT TECHNOLOGY PTY LTD | Defendant |
BRISBANE
DATE 17/02/2010
ORDER
CATCHWORDS | Uniform Civil Procedure Rules r 674(c) Claim struck out when plaintiff failed to provide security for costs as required by a court order (silent as to time) - "guillotine order" not made where plaintiff had no idea whether or when it might get funds |
HIS HONOUR: The defendant seeks an order of kind made by Justice Jones in Metar Pty Ltd v Hagen [2004] QSC 462 pursuant to Rule 674(c) of Uniform Civil Procedure Rules for dismissal of the plaintiff's claim.
An order for security for costs, albeit less generous than the defendant had sought, was made by Judge Kingham on or about the 27th of August 2009. See [2009] QDC 284. In the exercise of the relevant discretion another Judge may or may not have made the order for security in the amount of $40,000 to be provided with the defendant at liberty to make a further application on the first day of the trial.
There has been no appeal made against that order however. No time for compliance was indicated. No security has been provided, hence this application.
As Jones J indicated, the Court is always reluctant to shut a litigant out of access to its processes to pursue a claim. On the other hand, in an era when legal costs loom so large, especially by comparison with the amount of the claim, which they do here as her Honour noted, the Court is properly concerned to protect a defendant against an outcome in which costs the defendant may be entitled to if the defence is successful are not forthcoming because the plaintiff has no resources to pay with.
The explanation for the plaintiff's failure to provide security is lack of funds. Mr Meyer, who represents the plaintiff with leave of the Court, indicates that if he had a crystal ball he might be able to indicate a time within which security could be provided. He says the plaintiff company has a history of decades of success in medical-related fields. It is currently encountering hard times, he says because of the actions of the defendant which has introduced a more commercial approach to the circumstances than might have been traditional. That consideration didn't influence Judge Kingham as a reason for not ordering security.
While a guillotine order appears not to be authorised in the Court's initial order for security for costs, it is established that where the initial order is not complied with and further time is allowed to the plaintiff to come up with security, a guillotine order may be made at that stage. See Billinudgel Pastoral Company Pty Ltd v. Westpac Banking Corporation BC9703988 which was noted with approval in Dovade Pty Ltd v. Shaddock [1999] NSWSC 142 at paragraph 14.
I would have been inclined to resolve the present application in that way but Mr Meyer appears to accept that there is no point in it. It may be that he lives to fight another day. The limitation period is years away from running out. If the plaintiff's circumstances change it may be able to come again.
Mr Johnson, representing the defendant, doesn't concede that submitting to the Court that dismissal of a claim for failure to put up security as ordered by the Court stands in the same case as dismissal after judgment on the merits at trial. That may or may not be right. There may be an analogy with circumstances in which a claim is dismissed for want of prosecution which Courts often decline to do in circumstances where the limitation period id still open and the delinquent plaintiff could come again. There may be an analogy with a non-suit. The Court is not determining that interesting question today.
The Court will order pursuant to Rule 674(c) that the plaintiff's claim be dismissed with costs to be assessed, if not agreed, including the defendant's costs of its application, the plaintiff having failed to provide security for costs as ordered by the Court on 27th of August 2009.
I order that the counterclaim be dismissed with no order as to costs. That last order was invited by Mr Johnson. He has conceded in the context of reference to Metar that there is no "Rule 444 letter" in the sense of one which strictly so identified itself, however there were multiple communications which, in my opinion, had the same effect.
It might also be noted that the time allowed for compliance with an order for security for costs made without any time for compliance specified was much shorter in Metar than is the situation here.